N.Y. Comp. Codes R. & Regs. Tit. 22 § 202.12 - Preliminary conference
Preamble.
The parties, with the court's assistance, are encouraged to consider as early as possible how best to achieve the most efficient, expeditious and cost-effective resolution of every case. A preliminary conference will frequently be a useful and even critical tool for furthering these goals. A preliminary conference should be held before the assigned judge, soon after commencement of the case and after the parties have conferred. An in-person conference should not be held, however, if such conference will be non-substantive or involve only the submission of a stipulated order (for example, because of the nature of the case or the caseload of the particular court or the assigned judge, or otherwise). In such cases, stipulations should be submitted or a scheduling order should be issued in accordance with subdivisions (b) or (g) of this section and counsel should not be required to appear. Further, pursuant to section 202.10 of this part, the court may also in its discretion, address preliminary conference matters, in whole or in part, telephonically or by remote technology with the attorneys for all parties.
When preliminary conferences are held, the court shall engage the parties in a discussion of the merits of the case aimed at determining how best to resolve the dispute as expeditiously and efficiently as possible. Among other topics, the court and the parties may consider at the preliminary conference:
* the principal factual and legal issues in dispute;
* the timing of presumptive mediation and the appropriateness of other forms of alternative dispute resolution for the dispute;
* the timetable for the proceedings, including the appropriateness of sequencing motion practice, discovery or other aspects of the case, to address threshold dispositive issues while discovery on other issues is held in abeyance;
* other matters as set forth in subdivision (c) of this section; and
* the date for a subsequent conference to follow-up on the matters discussed at the preliminary conference.
(a) A party may request a preliminary
conference at any time after service of process. The request shall state the
title of the action; index number; names, addresses, telephone numbers and
email addresses of all attorneys appearing in the action; and the nature of the
action. If the action has not been assigned to a judge, the party shall file a
request for judicial intervention together with the request for a preliminary
conference. The request shall be served on all other parties and filed with the
clerk for transmittal to the assigned judge. The court shall order a date for
preliminary conference in any action upon such request and subject to the
following.
(b) In the absence of a
party request as set forth in subdivision (a), and except as provided in
subdivision (g), after the filing of a request for judicial intervention, the
court shall promptly email to all parties the form of a stipulation and order,
prescribed by the Chief Administrator of the Courts which shall provide for
completion of disclosure within twelve (12) months of the filing of the request
for judicial intervention for a standard case, or within fifteen (15) months of
such filing for a complex case. The form of the stipulation shall contain a
certification by attorneys for the parties that they have met and conferred on
the items set forth in sections
202.11 and
202.12(c). If all
parties sign the form and return it to the court within thirty (30) days, such
form shall be "so ordered" by the court and no preliminary conference shall be
held unless the court orders otherwise. If such stipulation is not returned
signed by all parties, the court shall schedule a conference to be held
virtually before the court or, in the court's discretion, nonjudicial
personnel, for the purpose of completing the form stipulation. Except where a
party appears in the action pro se, an attorney thoroughly familiar with the
action and authorized to act on behalf of the party shall appear at such
conference.
(1) If the parties agree on the
form stipulation it may be "so ordered" by the court. Where the parties cannot
agree, or where issues arise that need judicial intervention, the court may
schedule a conference before the assigned judge or before the judge in charge
of the preliminary conference part. At the discretion of the court, the
conference may be held virtually or in person.
(c) Where a case is reasonably likely to
include electronic discovery, attorneys for all parties shall meet and confer
on the subject of electronic discovery. If the parties are unable to reach a
stipulation governing electronic discovery, the court may direct a conference
on the subject. The parties or attorneys appearing at such conference must be
sufficiently versed in matters relating to their clients' technological systems
to discuss competently all issues relating to electronic discovery, and
attorneys may bring a client representative or outside expert to assist in such
e-discovery discussions. A non-exhaustive list of considerations for
determining whether a case is reasonably likely to include electronic discovery
is:
(1) Does potentially relevant
electronically stored information ("ESI") exist;
(2) Do any of the parties intend to seek or
rely upon ESI;
(3) Are there less
costly or less burdensome alternatives to secure the necessary information
without recourse to discovery of ESI;
(4) The cost and burden of preserving and
producing ESI and whether such costs and burdens are proportional to the amount
in controversy; and
(5) What is the
likelihood that discovery of ESI will aid in the resolution of the
dispute.
(d) The court
may, in its discretion, either in advance of the preliminary conference or in
response to the filing of the stipulation and order contemplated by subdivision
(b) of this section, require the parties to provide to the court their
positions on each of the items in sections
202.11 and
202.12(c) and
such other matters as the court deems necessary or appropriate.
(e) The matters which may be considered at a
preliminary conference or at the first conference before the court if the
preliminary conference has been cancelled under sections
202.12(b) or
202.12(g), shall
include:
(1) the positions of the litigants on
the matters described in sections
202.11 and
202.12(c),
particularly alternative methods for resolving the dispute, simplification and
limitation of factual and legal issues, where appropriate, expedited
disposition of the action, and effective controls to prevent protracted
litigation due to lack of judicial management;
(2) the terms, provisions and schedule
included in the stipulation described above submitted by the attorneys for the
litigants, and the establishment of a timetable for the completion of all
disclosure proceedings, provided that all such procedures must be completed
within the timeframes set forth in subdivision (b) of this section, unless
otherwise shortened or extended by the court depending upon the circumstances
of the case;
(3) Where the court
deems appropriate, it may establish the method and scope of any electronic
discovery. In establishing the method and scope of electronic discovery, the
court may consider the following non-exhaustive list, including but not limited
to:
(i) identification of potentially
relevant types or categories of ESI and the relevant time frame;
(ii) disclosure of the applications and
manner in which the ESI is maintained;
(iii) identification of potentially relevant
sources of ESI and whether the ESI is reasonably accessible;
(iv) implementation of a preservation plan
for potentially relevant ESI;
(v)
identification of the individual(s) responsible for preservation of
ESI;
(vi) the scope, extent, order,
and form of production;
(vii)
identification, redaction, labeling, and logging of privileged or confidential
ESI;
(viii) claw-back or other
provisions for privileged or protected ESI;
(ix) the scope or method for searching and
reviewing ESI; and (x) the anticipated cost and burden of data recovery and
proposed initial allocation of such cost.
(4) addition of other necessary
parties;
(5) settlement of the
action;
(6) removal to a lower
court pursuant to CPLR 325, where appropriate; and
(7) any other matters that the court may deem
relevant.
(f) At the
conclusion of the conference, the court shall make a written order including
its directions to the parties as well as stipulations of the parties'
attorneys. Alternatively, in the court's discretion, all directions of the
court and stipulations of counsel the attorneys may be recorded by a reporter.
Where the latter procedure is followed, the parties shall procure and share
equally the cost of a transcript thereof unless the court in its discretion
otherwise provides. The transcript, corrected if necessary on motion or by
stipulation of the parties approved by the court, shall have the force and
effect of an order of the court. The transcript shall be filed by the plaintiff
with the clerk of the court.
(g) In
its discretion, taking into account the caseload of the court, the nature of
the claim, the absence of an IAS judge to preside, the inability of a defendant
to retain counsel, the failure of an insurer to appoint counsel, or the
inability of the parties to meet and confer, the presiding court, either in
advance of the preliminary conference or at the request of one of the parties,
may issue to all parties a case scheduling order setting forth a timetable
which shall provide for completion of disclosure within 12 months of the filing
of the request for judicial intervention for a standard case, or within 15
months of such filing for a complex case. If a case scheduling order is issued
by the court the order may also provide for other terms and conditions as the
court deems appropriate, and the preliminary conference shall be cancelled. In
response to such scheduling order, any party may, within 10 days of entry of
the scheduling order, object thereto and request a preliminary conference as
described above.
(h) In the
discretion of the court, failure by a party to comply with the order or
transcript resulting from the preliminary conference, or with the so-ordered
stipulation or scheduling order provided for in subdivisions (b) and (g) of
this section, or the making of unnecessary or frivolous motions by a party,
shall result in the imposition upon such party of costs or such other sanctions
as are authorized by law.
(i) A
party may request the court to advance the date of a preliminary conference
upon a showing of appropriate circumstances. During the course of the case, any
party may request such additional conferences as appropriate. The court will
give the attorneys notice of the conference at least one week before any
conference unless there are special circumstances requiring an earlier
conference.
(j) The court, in its
discretion, at any time may order such conferences as the court may deem
helpful or necessary in any matter before the court.
(k) The provisions of this section shall
apply to preliminary conferences required in matrimonial actions and actions
based upon a separation agreement, in medical malpractice actions, and in real
property tax assessment review proceedings within the City of New York, only to
the extent that these provisions are not inconsistent with the provisions of
sections 202.16,
202.56 and
202.60 of this Part,
respectively.
(l) The provisions of
this section shall apply where a request is filed for a preliminary conference
in an action involving a terminally ill party governed by CPLR 3407 only to the
extent that the provisions of this section are not inconsistent with the
provisions of CPLR 3407. In an action governed by CPLR 3407 the request for a
preliminary conference may be filed at any time after commencement of the
action, and shall be accompanied by the physician's affidavit required by that
provision.
Notes
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